{"id":171798,"date":"2008-09-29T00:00:00","date_gmt":"2008-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishan-vallabh-vs-ms-ram-chandra-kumawat-company-on-29-september-2008"},"modified":"2018-07-18T14:05:47","modified_gmt":"2018-07-18T08:35:47","slug":"krishan-vallabh-vs-ms-ram-chandra-kumawat-company-on-29-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishan-vallabh-vs-ms-ram-chandra-kumawat-company-on-29-september-2008","title":{"rendered":"Krishan Vallabh vs M\/S Ram Chandra Kumawat & Company & … on 29 September, 2008"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Krishan Vallabh vs M\/S Ram Chandra Kumawat & Company & … on 29 September, 2008<\/div>\n
                                              S.B.Civil Misc. Appeal No.696\/2008\n                                    The State of Raj. through Addl. Chief Engineer\n                                    vs. M\/s Ramchandra Kumawat & Co.and anr.\n                                                      and another connected appeal\n                              1.\n IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT\n                      JODHPUR.\n\n                           JUDGMENT\n\n\n       (1) S.B. Civil Misc. Appeal No. 696\/2008\n\n          The State of Raj.,        vs    M\/s Ramchandra\n          through Addl. Chief             Kumawat & Co.\n          Engineer, & ors.                & another.\n\n      (2) S.B. Civil Misc. Appeal No. 611\/2008\n\n          Krishan Vallab      vs.           M\/s Ramchandra\n                                            Kumawat & Co. And\n                                            others.\n\n\n                 under Order 43 Rule 1(r), CPC against the\n           order dated 3.5.2008 passed by the Addl.\n           District & Sessions Judge No.3, Udipuar in Misc.\n           Case No.14\/2008.\n\n   Date of Judgment:                September 29th, 2008.\n\n                          PRESENT\n              HON'BLE MR. PRAKASH TATIA, J.\n\n\nMr. Rameshwar Dave, Dy.G.A. for the State in Appeal\nNos.696\/08b & 611\/08.\nMr. Ravi Bhansali for the appellant in Appeal No.611\/08 and\nfor respondent no. 2 in Appeal No.696\/08\nMr. Rajesh Joshi for the respondent no.1 in both the appeals.\n                                                   S.B.Civil Misc. Appeal No.696\/2008\n                                        The State of Raj. through Addl. Chief Engineer\n                                        vs. M\/s Ramchandra Kumawat & Co.and anr.\n                                                          and another connected appeal\n                                 2.\n\nBY THE COURT:<\/pre>\n
     These two appeals have been preferred to challenge the<\/p>\n
order dated 3.5.2008 passed by the court of Addl. District Judge<\/p>\n
No.3, Udaipur in Civil Misc. Case NO.14\/08 by which the trial court<\/p>\n
granted injunction order against giving work to the appellant<\/p>\n
Krishna Kumar. The Works in question are in relation to work out of<\/p>\n
package for which notices inviting tenders NO. 28 \/PMGSY\/2007-<\/p>\n
2008 was issued on 4.2.2007.\n<\/p>\n
     According to the plaintiff, he was competitive bidder for the<\/p>\n
work in question and as the officers of the respondent had grudge<\/p>\n
against   the   plaintiff-respondent,    therefore,          with       malafide<\/p>\n
intention and to blame respondent-plaintiff, the tender of the<\/p>\n
appellant-defendant no.4 was accepted even when the appellant-<\/p>\n
defendant’s tender was liable for rejection because of the reason<\/p>\n
that the tender documents were incomplete as the requisite price<\/p>\n
for the five years maintenance of the work was not mentioned by<\/p>\n
the defendant-appellant in the tender documents and some of the<\/p>\n
pages of tender document were not signed by him and further the<\/p>\n
offer was non-responsive.\n<\/p>\n
                                                  S.B.Civil Misc. Appeal No.696\/2008
\n                                       The State of Raj. through Addl. Chief Engineer
\n                                       vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                         and another connected appeal
\n                                 3.<\/span>
\n       The trial court after considering Conditions No.25.1, 25.2,<\/p>\n
25.3 as well as clause 8.3, held that the tender document of the<\/p>\n
appellant-defendant no.4 was incomplete, as he did not give any<\/p>\n
rates for the five years maintenance and did not sign that part of<\/p>\n
the document and, therefore, the tender document was non-<\/p>\n
responsive and since it has not been signed, therefore, it was liable<\/p>\n
to be rejected as per clause 25.1, 25.2 and 25.3 of the conditions<\/p>\n
of the tender. The trial court rejected the contention of the State<\/p>\n
as well as the rival contractor that if any amount is not mentioned<\/p>\n
in the document for any work, then that work cost is required to<\/p>\n
be treated included in the rates mentioned by the contractor for<\/p>\n
whole of the work. The learned trial court also was of the view<\/p>\n
that contention of the defendant-appellant that main work in the<\/p>\n
contract was construction of the roads and was not its<\/p>\n
maintenance, also cannot be accepted. The plaintiff in addition to<\/p>\n
relief of prohibitory injunction against the respondent, sought<\/p>\n
mandatory injunction in its favour for grant of work order in his<\/p>\n
favour. However, the trial court was of the view that no case is<\/p>\n
made out by the plaintiff-respondent no.1 for issuing work order in<\/p>\n
his favour by interim order. In view of the above reasons, the trial
\n                                                 S.B.Civil Misc. Appeal No.696\/2008
\n                                      The State of Raj. through Addl. Chief Engineer
\n                                      vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                        and another connected appeal
\n                                 4.<\/span>
\ncourt granted the only prohibitory injunction in favour of<\/p>\n
respondent-plaintiff and refused mandatory injunction to the<\/p>\n
plaintiff.\n<\/p>\n
      The defendant-contractor has preferred Appeal no.611\/08,<\/p>\n
whereas the State has preferred Appeal no. 696\/08 to challenge<\/p>\n
the said order dated 3.5.2008.\n<\/p>\n
      According to the learned counsel for the appellant-<\/p>\n
contractor, the appellant contractor submitted his bid knowing it<\/p>\n
well that as per Condition No.39.3, the contractor can submit his<\/p>\n
price for whole of the contract work by giving bids so as to cover<\/p>\n
maintenance cost for roads for five years after completion of<\/p>\n
construction of roads in the main work cost and which the<\/p>\n
appellant-defendant contractor did in present transaction. The<\/p>\n
Condition No.39.3 clearly provides that items of the works for<\/p>\n
which no rate or price has been entered in the Bills of Quantities,<\/p>\n
will not be paid for by the Employer and shall be deemed covered<\/p>\n
by other rates and prices in the contract. To make this position<\/p>\n
clear, the appellant-contractor submitted before the authorities in<\/p>\n
writing also. As per clause 32.1, the performance security taken<\/p>\n
from the contractor, which says that successful bidder\/contractor
\n                                                    S.B.Civil Misc. Appeal No.696\/2008
\n                                         The State of Raj. through Addl. Chief Engineer
\n                                         vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                           and another connected appeal
\n                                 5.<\/span>
\nshall provide to the contractor total performance security of five<\/p>\n
percent of the contact price, for a period of five years and the<\/p>\n
time of completion of construction work plus additional security<\/p>\n
for unbalanced bids in accordance with clause 27.3 and 27.4 of ITB<\/p>\n
and clause 46 Part-I General condition of contract. It is also<\/p>\n
submitted by the learned counsel for the appellants that the<\/p>\n
principal work is of construction of roads and maintenance for five<\/p>\n
years is ancillary work. The trial court failed to appreciate the<\/p>\n
distinction between two works. It is submitted that two works may<\/p>\n
have been the part of the same contract, but at the same time,<\/p>\n
the nature of the work cannot be ignored. The major work under<\/p>\n
the contract is construction of roads.\n<\/p>\n
        The learned counsel for the appellant-State vehemently<\/p>\n
submitted that the appellant himself got the contract for other<\/p>\n
works     from   the   appellant-State     under         the      same\/similar<\/p>\n
advertisement inviting tenders by submitting tender form with<\/p>\n
some pages without signatures of the plaintiff-respondent and yet<\/p>\n
has challenged the act of the respondent when the bid was not<\/p>\n
came in favour of the respondent-plaintiff. It is also submitted that<\/p>\n
absolutely false and baseless allegations of malafide have been
\n                                                  S.B.Civil Misc. Appeal No.696\/2008
\n                                       The State of Raj. through Addl. Chief Engineer
\n                                       vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                         and another connected appeal
\n                                  6.<\/span>
\nlevelled by the plaintiff against the officers of the appellant-State<\/p>\n
and that too without impleading any of the officers as party in the<\/p>\n
suit and in the petition for grant of injunction. It is also submitted<\/p>\n
that in a matter of mere breach of contract, adequate relief can<\/p>\n
be obtained by filing a suit for damages and the plaintiff cannot<\/p>\n
get the contract in his favour in present suit. Therefore, no<\/p>\n
injunction could have been granted by the trial court. It is also<\/p>\n
submitted that in a matter of public importance affecting the<\/p>\n
public at large, the courts are expected to slow in granting<\/p>\n
injunction so as to put a complete halt over the work for public<\/p>\n
benefit. The learned counsel for the appellant relied upon several<\/p>\n
judgments of the Hon’ble Supreme Court in support of his<\/p>\n
contention.\n<\/p>\n
      The learned counsel for the respondents vehemently<\/p>\n
submitted that this fact is not in dispute that some of the pages of<\/p>\n
the tender document have not been signed by the appellant-<\/p>\n
contractor and signing of the document and each page of the<\/p>\n
document only can make the tender document a valid document of<\/p>\n
tender. In case the documents are not signed or any of the<\/p>\n
requirement is unfilled, then the tender document cannot be
\n                                                   S.B.Civil Misc. Appeal No.696\/2008
\n                                        The State of Raj. through Addl. Chief Engineer
\n                                        vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                          and another connected appeal
\n                                  7.<\/span>
\nconsidered and required to be rejected. Clause 8.3 clearly provides<\/p>\n
that the bidder is expected to examine carefully all instructions<\/p>\n
and conditions of contract and in case bid is not substantially<\/p>\n
responsive to the requirements of the bid documents then on this<\/p>\n
ground alone, the document is required to be rejected. Clause<\/p>\n
18.2. further provides that all pages of bid document shall be<\/p>\n
signed by the persons or person signing the bid. Clause 25.1 also<\/p>\n
specifically provides that during detailed evaluation of technical<\/p>\n
bids, it will be looked into that the bid has been properly signed<\/p>\n
and is responsive to the requirement of bidding document. What is<\/p>\n
substantially responsive, has been explained under Condition<\/p>\n
NO.25.2 and it prohibits the rectification of bid in any manner.<\/p>\n
Clause 25.3 is specific provision for rejection of financial bid, if it<\/p>\n
is not substantially responsive and also provides that a bid which is<\/p>\n
not substantially responsive, may not be subsequently be made<\/p>\n
responsive by correction or withdrawn of the nonconforming<\/p>\n
deviation or reservation.\n<\/p>\n
      The learned counsel for the respondent-plaintiff relief upon<\/p>\n
the judgment of the Delhi High Court delivered in the case of P.K.<\/p>\n
Delicacies Pvt. Ltd. vs. Union of India (2005(2) CTLJ 134 (Delhi)
\n                                                  S.B.Civil Misc. Appeal No.696\/2008
\n                                       The State of Raj. through Addl. Chief Engineer
\n                                       vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                         and another connected appeal
\n                                 8.<\/span>
\nwherein the annexed document was not filled up and signed then<\/p>\n
the Division Bench of the Delhi High Court held that it is an<\/p>\n
important part of tender bid and was required to be filled up and<\/p>\n
signed by the person giving the bid. The Division Bench of the Delhi<\/p>\n
High Court held that the failure to fill up the said document,<\/p>\n
cannot be a technical irregularity of little or no significance and,<\/p>\n
thereafter, it has been held that as a general rule, tender<\/p>\n
conditions has to be strictly adhered to and the authorities<\/p>\n
concerned have power to reject and not to consider the tender<\/p>\n
which is incomplete and lacking any particulars.<\/p>\n
      The learned counsel for the respondent-plaintiff further<\/p>\n
relied upon the judgment of the Gauhati High Court delivered in<\/p>\n
the case of R.N. Ghosh vs. State of Tripura and others ( 2000(3)<\/p>\n
Arb.LR 64 (Gauhati), wherein there was condition that the bidder<\/p>\n
shall put his full signature on every page of rate schedule. In that<\/p>\n
case the bidder put his initials only in place of full signatures and<\/p>\n
that was found non-compliance of the requirement by the Gauhati<\/p>\n
High Court. It is also submitted that in some cases where the rates<\/p>\n
were required to be given in figure as well as in words and have<\/p>\n
not been given so, has been considered as non-compliance of the
\n                                                  S.B.Civil Misc. Appeal No.696\/2008
\n                                       The State of Raj. through Addl. Chief Engineer
\n                                       vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                         and another connected appeal
\n                                  9.<\/span>
\nconditions of the tender.\n<\/p>\n
      The learned counsel for the respondents also relied upon<\/p>\n
judgment of the Hon’ble Apex Court delivered in the case of W.B.<\/p>\n
State Electricity Board vs. Patel Engineering Co. Ltd. and others<\/a><\/p>\n
( (2001) 2 SCC 451), wherein Hon’ble the Apex Court held that the<\/p>\n
principle of awarding contract to lowest tenderer applies when all<\/p>\n
things are equal and there is no obligation to award contract to<\/p>\n
lowest bidder and in this case, according to the learned counsel for<\/p>\n
the respondent, the respondent is prepared to do the work on the<\/p>\n
rates given by the defendant-appellant-contractor and, therefore,<\/p>\n
there cannot arise any question of loss to the State or public.<\/p>\n
      The learned counsel for the respondent-plaintiff vehemently<\/p>\n
submitted that no plea was taken by the State or the appellant-<\/p>\n
contractor   that   the     plaintiff-respondent-contractor              himself<\/p>\n
submitted tender document with some blank pages or without<\/p>\n
signing of the pages. This pleas has been taken for the first time in<\/p>\n
argument before this Court, which cannot be entertained.<\/p>\n
      I considered the submissions of the learned counsel for the<\/p>\n
parties and perused the facts of the case.\n<\/p>\n
      There cannot be any doubt that in the matter of award of
\n                                                  S.B.Civil Misc. Appeal No.696\/2008
\n                                       The State of Raj. through Addl. Chief Engineer
\n                                       vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                         and another connected appeal
\n                                 10.<\/span>
\nthe contract for public work by the Government agencies, the<\/p>\n
Government agencies cannot act arbitrarily. The Government<\/p>\n
agencies are required to see the compliance of all the conditions<\/p>\n
which can certainly prevent the favoritism and avoid harm because<\/p>\n
of the bias as well as to prevent corruption in the matter of<\/p>\n
awarding work contact of huge amount to the contractor. It is also<\/p>\n
true that mere offer of low price cannot be ground for grant of<\/p>\n
award of contract and the contractor is required to full fill all<\/p>\n
other eligibility criteria. Which condition is essential condition of<\/p>\n
the contract, depends upon the facts of each case. In a case where<\/p>\n
short signatures were put in place of full signatures of the bidder,<\/p>\n
the court held that it is non-compliance of the requirement for<\/p>\n
giving offer but that cannot be applied as a rule in all contracts. In<\/p>\n
the case of R.N. Ghosh (supra), there was specific requirement of<\/p>\n
signing the document with full signatures and in the facts of the<\/p>\n
case, the court held that the initial or short signatures of the<\/p>\n
bidder was violation of the condition. As stated above, this<\/p>\n
proposition cannot be accepted as rule of general law in each and<\/p>\n
every case. Here in this case, the alleged violations are that the<\/p>\n
defendant-appellant-contractor did not mention the rates for
\n                                                  S.B.Civil Misc. Appeal No.696\/2008
\n                                       The State of Raj. through Addl. Chief Engineer
\n                                       vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                         and another connected appeal
\n                                 11.<\/span>
\nmaintaining the roads for five years after completion of roads. If it<\/p>\n
is looked into without noticing the complete contract and the<\/p>\n
conditions applicable for the contract, then it is a serious matter.<\/p>\n
If the bid could have been rejected only on this ground, then there<\/p>\n
was no reason for providing Condition No.39.3, which specifically<\/p>\n
provides that in case no rate or price has been entered in the bills<\/p>\n
of quantities for the works, no amount will be paid by the<\/p>\n
employer to the contractor for said unquoted price and it shall be<\/p>\n
deemed that the rates and prices are already covered by other<\/p>\n
rates and prices given in the contract. The appellant-contractor<\/p>\n
submitted in writing to the defendants, the government agencies<\/p>\n
that his bid includes the maintenance price for the roads, is not<\/p>\n
any addition, alteration or variation in the offer of defendant-<\/p>\n
appellant so as to hit by clause 25.3. Clause 25.3 only provides that<\/p>\n
if a bid is not substantially responsive, it cannot be made<\/p>\n
responsive, subsequently by (a) correction or (b) withdrawal of the<\/p>\n
nonconforming deviation or (c) reservation. The correction,<\/p>\n
withdrawal, deviation and reservation cannot be equated with<\/p>\n
making the position clear only by pointing out towards the real<\/p>\n
facts and meaning of the offer. The documents, therefore, was
\n                                                    S.B.Civil Misc. Appeal No.696\/2008
\n                                         The State of Raj. through Addl. Chief Engineer
\n                                         vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                           and another connected appeal
\n                                   12.<\/span>
\ninclusive of the cost or rates for maintenance of the roads for five<\/p>\n
years.\n<\/p>\n
         If there can be unfilled column for cost of work and the cost<\/p>\n
of that work stands included in the price given for other items in<\/p>\n
the tender document and the contractor is not claiming any<\/p>\n
benefit out of that part of the contract and, therefore, has not<\/p>\n
signed the said page of the contract, it cannot materially affect<\/p>\n
the document so as to say that the tender document was not<\/p>\n
“substantially responsive” or was incomplete.<\/p>\n
         In view of the above reason, the trial court failed to<\/p>\n
appreciate the facts of the case properly and committed error of<\/p>\n
law in interpreting the clauses of the conditions of the tender<\/p>\n
document and the relevant conditions. In the case of B.S.N. Joshi<\/p>\n
& Sons Ltd. vs. Nair Coal Services Ltd. & ors.<\/a> ( (1006) 11 SCC 548),<\/p>\n
the Hon’ble Court considered issue of essential conditions and<\/p>\n
substantial compliance with essential condition in the matter of<\/p>\n
government contracts and also made it clear what is aims and<\/p>\n
object of the tender conditions. Hon’ble the Apex Court held that<\/p>\n
the tender conditions may have to be construed differently having<\/p>\n
regard to the facts situation obtaining in each case and no hard
\n                                                  S.B.Civil Misc. Appeal No.696\/2008
\n                                       The State of Raj. through Addl. Chief Engineer
\n                                       vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                         and another connected appeal
\n                                 13.<\/span>
\nand fast rule can be laid down therefor. Hon’ble the Apex Court<\/p>\n
held that when a decision is taken by the appropriate authority<\/p>\n
upon due consideration of the tender document submitted by all<\/p>\n
the tenderer on their own risk and if it is ultimately found that<\/p>\n
successful bidders had in fact substantially complied with the<\/p>\n
purport and object for which essential conditions were laid down,<\/p>\n
the same may not ordinarily be interfered with by the court.<\/p>\n
      In view of the above reason, there appears to be no prima<\/p>\n
facie case in favour of the plaintiff-respondent.<\/p>\n
      If we look into the question of irreparable injury, then in<\/p>\n
government contract of the nature which is involved in this case,<\/p>\n
there is commercial interest of the contract but, at the same time,<\/p>\n
the beneficiaries of the work is the public. There may be very<\/p>\n
many reasons for challenge to giving of the contract to one of the<\/p>\n
parties and one of the important aspect may also be that the<\/p>\n
corruption which is required to be curbed by the courts, when the<\/p>\n
facts are brought to the notice of the court. Here in this case, the<\/p>\n
plaintiff even after alleging the malafide and favoritism, could not<\/p>\n
substantiate his plea and, therefore, it appears that the plaintiff<\/p>\n
is seeking stay against the public work only on the basis of mere
\n                                                         S.B.Civil Misc. Appeal No.696\/2008
\n                                              The State of Raj. through Addl. Chief Engineer
\n                                              vs. M\/s Ramchandra Kumawat & Co.and anr.\n<\/p>\n
                                                                and another connected appeal
\n                                        14.<\/span>
\n      technical objections which may cause greater hardship to the<\/p>\n
      public at large and loss to the State exchequer also. In contrast,<\/p>\n
      the plaintiff is not likely to suffer such irreparable injury which can<\/p>\n
      be compensated by money.\n<\/p>\n
            In view of the above reason, there appears to be no balance<\/p>\n
      of convenience in favour of the plaintiff.\n<\/p>\n
            Hence the appeals of the appellants are allowed. The<\/p>\n
      injunction order granted by the trial court dated 3.5.2008 is set<\/p>\n
      aside. The injunction application of the plaintiff is dismissed. No<\/p>\n
      order as to costs.\n<\/p>\n
                                                    (PAKASH TATIA),J.\n<\/p>\n
mlt\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Krishan Vallabh vs M\/S Ram Chandra Kumawat & Company & … on 29 September, 2008 S.B.Civil Misc. Appeal No.696\/2008 The State of Raj. through Addl. Chief Engineer vs. M\/s Ramchandra Kumawat & Co.and anr. and another connected appeal 1. IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-171798","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nKrishan Vallabh vs M\/S Ram Chandra Kumawat & Company & ... on 29 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/krishan-vallabh-vs-ms-ram-chandra-kumawat-company-on-29-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishan Vallabh vs M\/S Ram Chandra Kumawat & Company & ... on 29 September, 2008 - 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